U.S. v. Murphy
| Citation | 993 F.2d 229 |
| Decision Date | 01 October 1992 |
| Docket Number | Nos. 91-5416,91-5428,91-5422,91-5446,91-5423,s. 91-5416 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Leverne MURPHY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Emma J. Allen, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James A. Butler, a/k/a Willie James Butler, a/k/a John Thomas, a/k/a Grady, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Irene R. Hughes, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Sharon P. Mickle, Defendant-Appellant. . Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-91-44-R)
Beth Mina Farber, Assistant Federal Public Defender, Federal Public Defender's Office, Baltimore, Maryland; Laura Lynne Wagner, Richmond, Virginia; Sa'ad El-Amin, Elamin & Crawford, P.C., Richmond, Virginia, for Appellants.
Howard Crawford Vick, Jr., Assistant United States Attorney, Richmond, Virginia, for Appellee.
Fred Warren Bennett, Federal Public Defender, Federal Public Defender's Office, Baltimore, Maryland, for Appellant Butler; John Adrian Gibney, Jr., Shuford, Rubin, Gibney & Dunn, Richmond, Virginia, for Appellant Murphy; Arnold Reginald Henderson, V, Wilder & Gregory, Richmond, Virginia, for Appellant Harris; Janipher Winkfield Robinson, Richmond, Virginia, for Appellant Mickle.
Richard Cullen, United States Attorney, Terry T. Hughes, Third Year Law Intern, Danika A. Nystrom, Second Year Law Intern, Richmond, Virginia, for Appellee.
E.D.Va.
AFFIRMED IN PART AND REMANDED IN PART.
Before HALL, NIEMEYER, and WILLIAMS, Circuit Judges.
James Butler, Emma Allen, Sharon Mickle, and Leverne Murphy appeal their convictions for conspiracy to distribute more than five kilograms of cocaine. 21 U.S.C. §§ 841(a) & 846 (1988). These individuals, along with Irene Hughes, also appeal their convictions for conspiracy to defraud the United States by impeding the lawful function of the Internal Revenue Service in the collection of income taxes. 18 U.S.C. §§ 2 & 371 (1988). James Butler also contests his simultaneous convictions for conspiracy under 21 U.S.C.s 846, and engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1988). Butler's conviction and sentence for conspiracy to distribute cocaine is remanded to the district court with instructions to vacate. On all other issues, we affirm.
On May 22, 1991, a federal grand jury returned a twenty-seven count indictment against James A. Butler, James A. Anderson, Emma J. Allen, Sharon P. Mickle, Irene R. Hughes, Leverne Murphy, Thomas Harris, Kathy Tyler, and Burton Tillman. 1 Count One charged that the Defendants had unlawfully conspired since January 1983 to distribute and to possess with intent to distribute five or more kilograms of cocaine. Count Two charged that all Defendants, except Burton Tillman, had conspired to defraud the United States by evading federal currency reporting requirements and by concealing the nature, source, ownership, and control of the proceeds of the Defendants' drug activity. Counts Three through Twenty-Six charged the Defendants with various substantive offenses, including distributing and possessing cocaine, money laundering, structuring financial transactions to evade reporting requirements, and concealing the ownership of money and property. Finally, Count Twenty-Seven charged James Butler with engaging in a continuing criminal enterprise.
James Butler was found guilty on all counts. Emma Allen, Sharon Mickle, and Leverne Murphy were each found guilty of participating in both the conspiracy to distribute cocaine and the conspiracy to defraud the United States. Irene Hughes was found not guilty of participating in the drug conspiracy, but was found guilty of conspiracy to defraud the United States.
Each Appellant asserts several errors in the proceedings below. We have carefully considered each claim, and find that only three claims require discussion. 2 James Butler argues that the district court erroneously entered judgments of conviction on both Count One and Count Twenty-Seven. He argues that simultaneous convictions for engaging in a continuing criminal enterprise and a predicate conspiracy violate the protections of the Fifth Amendment's Double Jeopardy Clause. Because of the alleged error, Butler also contests the calculation of his sentence under § 3C1.1 of the United States Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov. 1990). He seeks resentencing.
Emma Allen challenges the district court's finding that she was a "manager or supervisor" of the cocaine and money laundering enterprises within the meaning of § 3B1.1(b) of the Sentencing Guidelines. Allen also seeks resentencing.
Finally, Irene Hughes argues that the evidence introduced at trial was insufficient to support her conviction under Count Two. She seeks a reversal of her conviction.
It is undisputed that James Butler organized and led an extensive and ongoing cocaine and money laundering enterprise in the Richmond, Virginia, metropolitan area. Butler was assisted, in varying degrees, by James E. Anderson, Raymond Hite, Emma J. Allen, Sharon P. Mickle, Irene R. Hughes, Leverne Murphy, D.J. Batts, Burton Tillman, Thomas Harris, Jesse J. Lindsey, Jr., Wayne D. Harris, David C. Lindsey, Everett Coleman, Daniel L. Flax, Donald E. Flax, Keith E. Ross, Edward D. Henderson, Jr., Landis Few, and Henry Earl Peay.
Butler's operation included the purchase of large quantities of cocaine and its distribution to in-house dealers and to other, largely independent operations. Certain subordinates, including Edward Henderson, Wayne Harris, and Landis Few, would travel alone or with Butler to New York and Florida to obtain cocaine in kilogram quantities. Butler would then supply kilogram quantities of cocaine to Daniel Flax, James Anderson and Edward Henderson. Henderson testified that over the course of the conspiracy he purchased six kilograms of cocaine from Butler at a cost of $500,000. Donald Flax testified that he and his brother Daniel 3 purchased at least fifty kilograms of cocaine and 100 pounds of marijuana from Butler, which they then sold to others. The Flax operation involved at least five other people and was capable of selling five to ten kilograms of cocaine per month. Butler exercised little supervisory authority over these operations.
Butler did, however, closely supervise his own drug distribution ring. Although several witnesses testified that they could purchase small quantities of cocaine directly from Butler, Butler's common practice was to use other individuals to distribute the cocaine for him. 4 Most frequently, Butler would instruct buyers to contact Emma Allen to obtain the cocaine. Butler accumulated over $2,000,000 in his cocaine dealings.
In order to conceal his substantial profits from the drug trade, Butler developed an extensive money laundering network. Butler ran his operation primarily out of his real estate and mortgage company, J & P Associates, Inc. Butler owned several other businesses, including J & P Grocery, J & P Laundromat, and Johnson & Jones Enterprises. Each of these businesses served as "fronts" through which Butler would launder money. 5
Through J & P Associates, Butler controlled close to 200 properties. Butler employed both an accountant, Raymond Hite, and a bookkeeper, Kathy Tyler, as part of the operation. The company engaged in some legitimate real estate work. It managed several apartment complexes, processed the rental income they produced, and provided mortgage loans on other properties. Much of the company's work, however, involved criminal activity. Once Butler obtained cash proceeds from one of his distributors, he worked with Hite to falsify the financial records of various properties, including properties on Clay Street, Laburnum Avenue, Andover Road, and Boston Avenue. The records showed the receipt of phony down payments, rental payments, mortgage payments, or closing costs to hide the true source of the drug proceeds deposited in the bank.
Butler also laundered money through the purchase of new properties. To conceal his ownership of increasing numbers of properties, Butler purchased properties indirectly by soliciting other individuals to serve as nominal purchasers. Raymond Hite, Emma Allen, Sharon Mickle, Irene Hughes, and Leverne Murphy all agreed to and did serve as Butler's nominees. Although these individuals held legal title to the properties, they exercised no dominion and control over them, except at Butler's direction. 6 Consequently, no legal documentation reflected the true extent of Butler's holdings.
Because Butler's real estate deals involved large cash transactions, Butler structured them to avoid federal reporting requirements for currency transactions. Under regulations promulgated by the Secretary of the Treasury, any person who transfers more than $10,000 in currency must file a currency transaction report. 31 C.F.R. § 103.22 (1992). Because his real estate transactions often involved sums greater than $10,000, Butler purchased properties with two or more cashier's checks, each in an amount less than $10,000. Structuring a financial transaction so as to avoid the currency reporting requirements, as Butler's scheme did, is a criminal offense. 31 U.S.C. §§ 5322(b) & 5324(3) (1988); 18 U.S.C. § 1956(a)(1)(B)(ii) (1988); 31 C.F.R. §§ 103.53(c) & 103.11(p) (1992).
Butler contends that the district court violated his...
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